Gatorade used the slogan “Gatorade The Sports Fuel Company” and SportFuel, Inc. sued, claiming trademark infringement. The district court threw out the case after it decided that Gatorade’s slogan was construed as fair use. SportFuel appealed.
A company called Righthaven LLC has been very busy filing lawsuits on behalf of the Las Vegas Review-Journal and the Denver Post based on a claim that others are stealing published information from the papers, which supposedly amounts to copyright infringement. At last count, Righthaven has filed a total of 275 lawsuits without providing any advance warning to the purported infringers. A lot of people believe that Righthaven is taking a page out of the playbook of pornographic film studios, using scare tactics to elicit multiple small settlements which eventually add up to a nice sum of money.
Recently, U.S. District Court Judge Phillip Pro ruled in favor of a defendant, stating that the person’s usage amounted to a fair use of the newspaper content. Righthaven has suffered three defeats on fair use grounds, alone. Further, Pro is the 2nd Nevada federal judge who stated that Righthaven did not have standing to sue over material that was printed in the Las Vegas Review-Journal. Even though the Review-Journal apparently transferred its control of its copyright to Righthaven, Pro found that Righthaven did not have exclusive control of the copyright, which is what is needed to have standing in such a case.
Now Righthaven may be sued for misleading the court by saying that it owns the copyrights it has been suing over when that may not have been accurate. Righthaven has already been fined $5,000 in a sanction by a U.S. District Judge based on non-disclosure of Stephens Media as an interested party in lawsuits concerning Review-Journal material. Stephens Media LLC owns the Review Journal. It also is entitled to receive 50% of any revenue that Righthaven receives from the filed lawsuits after costs are considered.
What at first may have seen as an easy money play for Righthaven may eventually bite the company in the ass.
Authors and scholars would love to be able to use unpublished works in their own works, but they must do so carefully so that they do not run afoul of copyright law and publisher restrictions. Historically, it has been tough to prove a fair use when dealing with unpublished works. There is no per se rule against finding a fair use of an unpublished work, but the holding of Harper & Row v. Nation Enterprises is applicable. It states, “that for the purposes of the second statutory factor, the unpublished nature of the work is ‘a key, though not necessarily determinative factor tending to negate a defense of fair use.'”
There are four factors of fair use:
- The purpose and character of the use.
- The nature of the copyrighted work – Scope of fair use broader for factual work. Look at creativity, imagination, investment of time in anticipation of financial return.
- The amountnt and substantiality of the work used.
- The effect of the use on the market value of the original.
Even if the second factor weighs in favor of the person who owns the copyright to the unpublished work, if the first, third, and fourth factors weigh heavily in favor of the claimed infringer, he may still prevail under a finding of fair use.
But then there is the chilling effect that cases have had on the publishing industry. Even if an author wishes to take a chance and challenge his ability to make a fair use of an unpublished work, he will likely be blocked by a major publisher. That is because many publishers are requiring authors to get written permission from copyright holders before using any unpublished works, even though it is likely that they would fall under the fair use doctrine.
Be careful when using any unpublished works and make sure to consult an attorney about this and any other intellectual property concern you may have.
You want to create some websites. You understand the value of owning the domain name for your name (i.e. DarrenHeitner.com), you need a website for your company, and maybe you also want to start up a blog. But you have no idea how to write the code for your various sites and do not feel like shelling out thousands of dollars for a professional coder to create the framework of your webpages.
What about opening up the source code of some of your favorite designed websites and grabbing that code for your own use? If you copy the entire code, you may be infringing on someone else’s copyrighted code. However, quantity of originality that need be shown is modest, so if you alter the code in any way, you may be safe from infringing another person’s source code. Even if most changes are not important modifications to functionality of source code, but rather consist of elimination of minor defects in code, if the changes require more than token independent effort or judgment and something is created that is recognizably its own in source code, it may be considered its own original work entitled to copyright protection.
Additionally, you might be able to argue fair use. Read more “Copyright Issues With Website Source Code”